Proposed Changes to Unlawful Presence Waivers

On January 6, 2012, the Department of Homeland Security (DHS) announced plans to implement changes to the processing of unlawful presence waivers for certain immediate relatives of U.S. citizens. The current procedure requires those who have been unlawfully present in the U.S. to return to their home country to consular process their immigrant visas. Howerver, individuals who have been unlawfully present in the U.S. for more than 180 days will trigger a 3 or 10 year bear to re-entry upon departure. Those subject to the bar can apply for unlawful presence waivers in their home country by showing that the bar would be an extreme hardship to their U.S. citizen spouse or parent, but the adjudication of such waivers can take weeks, months, or years. Under the new proposed regulations, individuals will be able to apply for the waiver of unlawful presence while remaining in the U.S. which will reduce the period of waiting and separation. If found qualified, the individual will be granted a provisional waiver and will still be required to depart the U.S. for consular processing of their immigrant visa. At the time of the consular interview, the provisional waiver will be applied and the immigrant visa will be granted assuming there are no other grounds of inadmissibility. The newly proposed procedure will only apply to immediate relatives of a U.S. citizen spouse or parent and to those who are subject to the 3 or 10 year bar for unlawful presence. Family members of lawful permanent residents or those without a qualifying relationship to a U.S. citizenship spouse or parent will not be able to benefit from the new procedure. Likewise, individuals seeking waivers for other grounds of inadmissibility will still be required to depart the U.S. in order to apply for a waiver. Please note that the new waiver process will not be made effective until DHS publishes the proposed regulations and the final rule is issued.